Don't be fooled - the "court challenge" to NIWA's temperature records is very little to do with the law and a lot to do with getting your attention.

It's no secret that I harbour a deep skepticism about the claims, motivations and tactics of those who would deny that anthropocentric global warming/man-made climate change is taking place. See, for instance, the (somewhat heated) comments thread to this Pundit post.

With that declaration of interest on the table, I think the legal basis for the announced court action against the National Institute of Water and Atmospheric Research is (to use a technical term) baloney. And I'm pretty sure the folks behind the claim know it too.

First up, there's the small matter of who the claim technically is being brought by. It's in the name of "The New Zealand Climate Science Education Trust", which has only been in existence for a week. Now, the only reason I can think of to set up a charitable trust and then use it as a vehicle to run a court case is to avoid liability for costs should a court decide to award them against you when you lose. In other words, it's hardly a move that screams confidence (not to mention the small ethical matter of the claimants seeking to avoid any potential liability to the taxpayer for the money that will be spent in opposing their little piece of theatre).

Second, on Radio New Zealand this morning the claimant's spokesperson stated that the legal action was being funded and run by members of the "Climate Science Coalition", as one of its members (Barry Brill, actually its chair) is a lawyer. Putting to one side the proverb "he who is his own lawyer has a fool for a client", the fact that the claimants are going up against the full legal resources of a Crown entity without bothering to engage the services of a specialist public lawyer indicates either supreme confidence in one's case or else a reluctance to waste good money on a hopeless cause.

Third, the statement of claim (or, at least the statement of claim as it is presented here) is very long on rhetoric and accusations and very short on legal analysis. It begins by alleging that:

NIWA has statutory duties to undertake climate research efficiently and effectively for the benefit of NZ, pursuing excellence and observing ethical standards, while maintaining full and accurate records.

As far as I can make out (because there are no particulars stated), this (sort of) mixes and matches the principles of operation imposed on NIWA by the Crown Research Institutes Act 1992 with obligations from the Public Records Act 2005. But given that the alleged failures complained of stretch back to 1999, it's difficult to see how the latter legislation is relevant to the failure to record decisions taken at that time. And while the former principles apply in a general sense to NIWA's activities, trying to show that any particular research programme or exercise of judgment in the course of conducting a research programme breaches them will be next to impossible. It requires a court to adjudicate upon matters of scientific expertise in which courts simply are not competent. It would be like asking the scientists at NIWA to pass judgment on whether the court's decision in Re: A.M.M. and K.J.O. was anappropriate judicial use of the interpretative provision in section 6 of the NZBORA.

Finally, there's this little comment by one of those behind the court action, Richard Treadgold:

Yes, finally [the Main Stream Media are paying attention]. It’s good, isn’t it? More people will hear of the existence of a contrary view. Of course, we must remember that this action is about the NZ temperature record (NZTR) and not anthropogenic global warming (AGW).

Still, it’s a step forward, it will give support to climate realists everywhere and we can move on to AGW itself when this little matter is settled. We can hardly discuss the facts of global warming if warming itself is not accurately established.

I'm well aware that litigation and public relations strategies often go hand in hand, and that many times court cases simply are politics by another means. Nevertheless, I still think this is pretty revelatory of the reasoning behind the decision to go to court. Those behind it have been banging on about the alleged NIWA malfeasance for months now. They have convinced various ACT MPs to raise questions in the House. They have issued numerous press releases. And yet their efforts have received scant attention in that much-maligned (but still adoringly pursued) "MSM".

The reason for that indifference seems pretty obvious to me. For one thing, the details of the wrongs that NIWA is alleged to have committed are horribly complicated. But for another, for the critics to be correct in their assertions you need to believe that not only is an entire government department involved in blatantly lying to the public so as to extort more funding for its activities, but that (at least) two National Party Ministers are complicit in covering up that fact. Exactly why they would wish to do so rather than expose massive incompetence and/or malfeasance that took place under the watch of the previous government is then difficult to explain: either they must be complete dolts who both have had the wool pulled over their eyes, or they must be fellow-travelers in the global conspiracy to enslave humanity through the AGW lie.

That's a hard line to sell. But now, with the announcement of court action, there's a new narrative: "NIWA accused of acting unlawfully". Exactly how or why it has done so, and why the Ministers in charge have ignored the matter, largely becomes irrelevant as the story is reframed as "there must be something the matter with what NIWA did or else it wouldn't be going to court."

(At least, that's how some people have chosen, with a faux-wide eyed innocence, to interpret the matter - almost as if they "obviously didn’t think to apply a critical eye to the claims of lobby groups" before cutting-and-pasting at length from a NZPA story on the matter ...)

So in a sense the legal action already is a win, irrespective of what happens when a judge takes a look at it. The fact that it made Morning Report, the pages of many of the country's newspapers and a bunch of the more prominent blog sites (as well as this pretty obscure one) is success in and of itself.

Which is, as I say, all that I think those behind the action really expect to get out of it. Because I'm pretty sure they won't find a receptive ear to their complaints on the bench.

I think you're right, and pardon my cynicism, but Michael Laws's 'shock' confession looks to be another. It's the even sillier season for MPs, time for them to run their their traditional pre-election sport of ethical limbo dancing and gratuitous publicity seeking.

Maybe ACT & Laws are subconciously signalling a desire to have their perks audited...

I was going to post on this yesterday, and spent a couple of hours, but by afternoon it was obvious Gareth and Russell had taken the prize ...

My take was the same as yours, Andrew: they've won already, by giving themselves more oxygen. The merits of the thing don't matter.

The tragedy is that on that, if nothing else, they probably are right – unless the media either ignores it (too late), or reports it in a way that reflects the actual weight of argument. The court, at least, will be obliged to give them some sort of hearing, in the interests of natural justice.

As to the weight of argument, although it is fiendishly complicated as you say, it also doesn't take very long, or any history of closely following this, to start to grasp that this is bombast. Here are a few examples. I'm sure you could keep going, and take the whole thing to pieces.

So, for example: The second para of their statement of claim asserts that “the official NZ Temperature Record (NZTR) … is the historical base for most Government policy and judicial decisions relating to climate change”. Whereas I thought it was a response to internationally peer-reviewed science, and our obligations under the Kyoto Protocol.

One of the decisions they're seeking to have judicially reviewed is NIWA’s refusal in 2010 to discontinue its use of the disputed ‘seven station series’ (7SS), which shows a 1-degree warming trend. The claimaints wrote and asked politely ... and NIWA refused! I mean, how outrageous is that?

The series is disputed because of NIWA’s adjustments. The claim is that NIWA manipulated the data to produce the warming trend.

Their 1999 decision to do this is the other one under review.

NIWA was, apparently, mistaken on a list of matters, including that the 1999 methodology was in accord with current international best practice, and had been peer reviewed and published in a scientific journal.

NIWA responds that the methodology for adjusting for site changes in the NZ temperature record was published in the peer-reviewed International Journal of Climatology in 1993:Rhoades DA and Salinger MJ (1993) "Adjustment of temperature and rainfall measurements for site changes" Int Journal of Climatology 13, 899 – 913.

Perhaps, the loosely worded claim is directed to Salinger's thesis, itself not peer reviewed and published? There's a lot in the backgrounder directed to discrediting both the thesis and Salinger. “Climate science was in its infancy in 1980”, “Neither of the supervisors of the 1981 thesis were climate scientists” and so on. But Salinger is an internationally recognised climate scientist, by his peers. And the IPCC, of course, and we know what the claimants' views are on that.

More background: “The NIWA 7SS shows a warming trend of 1.0°C from 1900 to 2004, and this is the only time series used by NIWA for determining average New Zealand temperature.” But then they also observe, in para 9 of the statement of claim, that NIWA relies on an 'Eleven-station series' (11SS) of unadjusted data produced in December 2009. Even if the 7SS is the official record, and NIWA refers to the 11SS solely to establish its validity (as opposed to using it formally to determine average NZ temperature), the findings of the 11SS are surely relevant, but glossed over. Because it shows the same trend:

“This series comprises a set of eleven stations spanning New Zealand where there have been no significant site moves for many decades. The data used in this series are raw (unadjusted) – no adjustments are required because the measuring sites have not moved significantly. There is a warming trend over the 77 year period 1931-2008 of close to 1 ºC.”

They've said there are no reasons to explain the adjustments. Gareth Renowden gives lots of reasons.

Then on Morning Report yesterday, their spokesperson said that adjustments were to be expected, but ought to be adjustment downwards in recent temperatures, to recognise urban effects. But according to this from NASA, based on peer reviewed methodology in a paper accepted for publication, urban effects are small.

And again from the background: "The 2010-11 vote for Research Science and Technology is to provide for a project to 'review' the Salinger thesis. The project is expected to involve 5-6 scientists working for about 6 months and the outcome will be reviewed by NIWA’s counterpart, the Australian Bureaux of Meteorologists (BOM). The methodology will be published in a scientific journal."

Why wouldn’t you wait to see if that validates it? Why spend everyone's money and time in court?

And according to Richard Treadgold (contrary to whatever else he may have said yesterday, as quoted above), this attack on NIWA is all about the attack on AGW, [edit: or certainly the IPCC, anyway, and the 'warming', if not the 'anthropogenic' part] trying again to discredit the IPCC one wee mistake at a time. That link is to a Youtube clip, instructive in all sorts of ways, posted by the ACT party. But of course they don’t want to talk about that, because they'd lose (for example, NOAA here and NASA here).

Their own measures (by which they're holding others to account) would invalidate their whole thesis: small mistakes or, charitably, inconsistencies and looseness of language here and there – certainly omission of some relevant facts.

Jeepers, sorry about the length. I'd almost written the post, you see, and now I've done it again ...

"It's no secret that I harbour a deep skepticism about the claims, motivations and tactics of those who would deny that anthropocentric global warming/man-made climate change is taking place."

I agree that right-wingers who dispute AGW may be motivated partly by the fact that the proposed spending solution is contrary to their beliefs...

...but for the exact same reason, left-wingers who fervently believe in AGW may be motivated partly by the fact that the proposed tax & spend-on-environment is something they would advocate anyway. The excuse of AGW just allows them to get the tax and spend program through the back door.

Not necessarily saying either side has any other motivation than scientific truth, but if you're skeptical of right-wing motivations here based on the conflict of interest, you should be equally skeptical of left-wing motivations...

The Public Records Act was preceeded by the 1957 Archives Act. So, any obligation around record keeping dating to 1999 comes under this.

Unlike the PRA, the 1957 Act did not oblige government institutions to make records; but if they were made, they had to be kept, unless the Chief Archivist gave the organisation permission to destroy them.

So, yes, NIWA was obliged to "maintain full and accurate records" - but there was no legal obligation to make such records in the first place.

"When we create a time series using adjusted data, we retain all the original raw data. It remains available on-line in the NIWA climate database so others can conduct their own analysis."

It would seems that Niwa, unsurprisingly, keeps pretty good records of all data sets.

The adjustments are for station shifts, as particular sites are warmer or cooler than others. Because recording sites have changed over the last hundred years (6 times in Dunedin for example), some adjustments are in order.

The Musselburgh pumping station (where Dunedin temperatures are now taken) is notably cooler than the hill suburbs. Not accounting for this leads to an artificial cooling in the figures.

Dunedin gardeners know about global warming anyway. When I was young, my Meyer lemons sulked or died - it was just too cold. Now they thrive.

@Falcon: "Not necessarily saying either side has any other motivation than scientific truth, but if you're skeptical of right-wing motivations here based on the conflict of interest, you should be equally skeptical of left-wing motivations..."

Oh, absolutely ... hence my declaration at the start of my piece, intended to reveal to the reader any potential biases at the git-go. But that said, I'm not a post-modernist relativist who thinks there is only "truthiness" and gut-level belief out there. So I'll just endorse what Claire said - whether or not the climate is changing as the result of human behaviour is a question that can only be answered by "the scientific method", applied (as best we weak, fragile and flawed human beings can) in an objective fashion. And that ain't something we teach at law school ...

@Julienne,

Thanks for that - although I'm still not sure how a breach by NIWA of the Archives Act 1957 (while unlawful in and of itself) would lead to the remedy the claimants seek (i.e. a declaration that the temperature series is unlawful and not to be relied upon).

I'm still not sure how a breach by NIWA of the Archives Act 1957 (while unlawful in and of itself) would lead to the remedy the claimants seek (i.e. a declaration that the temperature series is unlawful and not to be relied upon).

I don't think it does. As you say earlier, the case sounds like baloney.

The only possible connection would be if NIWA have refused to release information about their methodology, in which case the Court case could be used to make them reveal it (and release the relevant documents under the OIA). Any errors found anywhere in the method or its application could then be played up to imply the data series is not to be relied upon.

But if a lack of release of paper under the OIA is the problem, surely the best avenue would be the Ombudsman, not the High Court? Of course, that does not garner nearly as much publicity.

@Julienne: "The only possible connection would be if NIWA have refused to release information about their methodology, in which case the Court case could be used to make them reveal it (and release the relevant documents under the OIA)."

Of course, that isn't a remedy that the claimants have asked for. And I'm actually not sure it is one that the High Court could even grant ... as you note, complaints that the OIA has been breached have to go to the ombudsmen, not to the courts.

But if the case does get accepted for a substantive hearing, the claimants will get discovery (i.e. the right to see NIWA's papers relevant to the decisions that are under challenge). I guess that might be a way to get round the OIA issue by going through the back door?

I don't have time to go back and relocate it now, but am 99.9% sure that in my travels yesterday, I found some stuff about the claimants' OIA request, and they had been told some of the information they had asked for simply does not exist. It was the older information -- when (picking up on Julienne's point) there was no record-making obligation. And that is, of course, a cast iron ground for not releasing it under the OIA!

NIWA has also released all manner of information about their methodology, publicly, on their website.

If anyone else is sufficiently interested to want to try to find it, the links in my first comment should put you on the trail.

And Falcon, it could be left-wingers who express concerns about AGW are just bound by ideology... Or it could be they're convinced by the 97% of publishing climate scientists who say the evidence backs AGW. Jeesh!

But given that the alleged failures complained of stretch back to 1999, it's difficult to see how the latter (PRA/05) legislation is relevant to the failure to record decisions taken at that time.
for those with the time and inclination to dig the fertile ground of deltoid via his et al you will early find use of the term "posterior probability". The following from my prelim blog..

As you will see Joe uses an early quote in which I find the term "posterior probability" of interest.. but insofar as taken out of that context and possibly applied or rendered applicable in relation to clause 5 in the Statement of Claim (likely media release I am advised @ hottopic by commenter TB)
At first reading that clause appeared a nonsense — how could a decision made in 1999 provide legitimate standing, patency and/or currency in 2010? Contingency for, perhaps, but nothing binding—climate science is hardly a financial futures contract!
Yet if the claimants could establish to the court a statistical notion of posterior probability insofar the records taken as rationale for the decision then... who knows what precedent setting may be derived (for both homegrown and international purposes) ?
Possibilities.. is all for now.. and perhaps pending. Added to which there may well be a suck-it-and-see consciousness in the business/political sphere to expand on earlier usage of "probability" and its supposed coherence with "uncertainty" etc. Do I correctly recall enzed Act-ivists pumping those terms as interchangeable not too long ago.
IMHO to do such a gamechanging-by-legal-precedent thing would require the claimants to accept those NIWA records as valid, thus negating any apparent intentions for now on the face of it, but then again court processes and exponents could have the whole discourse amount to tacit acceptance by default, unawareness, whatever ? of this new understanding..
We might OTOH console ourselves that whilst an ignorant beastie can have the balls for such a scheme they seldom will have the brains. Yet that, too, can be what money is for.. ummn.
BTW I am also informed that the two statisticians alluded to are not science-related. More business school staff. Given the nature of the claimants, supporters, backers etc we should not overlook a fact of their interpretation of science as its being a business utility. And thus research or R&D capable of meaningful assessment/s by them.
That said, I do not see them in any way whatsoever at parity with NIWA and yet if declaration C shall be required then an appropriate escrow written arrangement ought be required by the court as their good faith commitment to non-trivial proceedings.
sorry it's longish, but I hope useful to you folks..